Issue 29 REGISTE NEW YORK STATE R

[Pages:78]July 21, 2021 Vol. XLIII Issue 29

DEPARTMENT OF STATE Division of Administrative Rules

REGISTER NEW YORK STATE

INSIDE THIS ISSUE:

D Rules Governing the Procedures for Adjudicatory Proceedings Before the Department of Financial Services

D Requiring Mask Wearing When Using the Facilities and Conveyances of the MTA and its Operating Affiliates and Subsidiaries

D Renewal Processing Post COVID-19 Emergency Orders

Notice of Availability of State and Federal Funds

State agencies must specify in each notice which proposes a rule the last date on which they will accept public comment. Agencies must always accept public comment: for a minimum of 60 days following publication in the Register of a Notice of Proposed Rule Making, or a Notice of Emergency Adoption and Proposed Rule Making; and for 45 days after publication of a Notice of Revised Rule Making, or a Notice of Emergency Adoption and Revised Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 60 days after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing. When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through the close of business on the next succeeding workday.

For notices published in this issue:

? the 60-day period expires on September 19, 2021 ? the 45-day period expires on September 4, 2021 ? the 30-day period expires on August 20, 2021

ANDREW M. CUOMO GOVERNOR

ROSSANA ROSADO SECRETARY OF STATE

NEW YORK STATE DEPARTMENT OF STATE

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E-mail: adminrules@dos.

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The New York State Register is now available on-line at: /register.htm

The New York State Register (ISSN 0197 2472) is published weekly. Subscriptions are $80 per year for first class mailing and $40 per year for periodical mailing. The New York State Register is published by the New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001. Periodical postage is paid at Albany, New York and at additional mailing offices. POSTMASTER: Send address changes to NY STATE REGISTER, the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001

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R R NEW YORK STATE

EGISTE

Be a part of the rule making process!

The public is encouraged to comment on any of the proposed rules appearing in this issue. Comments must be made in writing and must be submitted to the agency that is proposing the rule. Address your comments to the agency representative whose name and address are printed in the notice of rule making. No special form is required; a handwritten letter will do. Individuals who access the online Register (dos.) may send public comment via electronic mail to those recipients who provide an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings.

To be considered, comments should reach the agency before expiration of the public comment period. The law provides for a minimum 60-day public comment period after publication in the Register of every Notice of Proposed Rule Making, and a 45-day public comment period for every Notice of Revised Rule Making. If a public hearing is required by statute, public comments are accepted for at least five days after the last such hearing. Agencies are also required to specify in each notice the last date on which they will accept public comment.

When a time frame calculation ends on a Saturday or Sunday, the agency accepts public comment through the following Monday; when calculation ends on a holiday, public comment will be accepted through the following workday. Agencies cannot take action to adopt until the day after expiration of the public comment period.

The Administrative Regulations Review Commission (ARRC) reviews newly proposed regulations to examine issues of compliance with legislative intent, impact on the economy, and impact on affected parties. In addition to sending comments or recommendations to the agency, please do not hesitate to transmit your views to ARRC:

Administrative Regulations Review Commission State Capitol

Albany, NY 12247 Telephone: (518) 455-5091 or 455-2731

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Each paid subscription to the New York State Register includes one weekly issue for a full year and four "Quarterly Index" issues. The Quarterly is a cumulative list of actions that shows the status of every rule making action in progress or initiated within a calendar year.

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New York State Register

July 21, 2021/Volume XLIII, Issue 29

KEY:

(P) Proposal; (RP) Revised Proposal; (E) Emergency; (EP) Emergency and Proposal; (A) Adoption; (AA) Amended Adoption; (W) Withdrawal

Individuals may send public comment via electronic mail to those recipients who provided an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings. Choose pertinent issue of the Register and follow the procedures on the website (dos.)

Rule Making Activities Environmental Conservation, Department of 1 / Chlorpyrifos Prohibition (A) Financial Services, Department of 2 / Rules Governing the Procedures for Adjudicatory Proceedings Before the Department of Financial Services (E) 4 / Minimum Standards for Form, Content, and Sale of Health Insurance, Including Standards of Full and Fair Disclosure (E) Gaming Commission, New York State 8 / Amendment of Video Lottery Gaming Regulations (P) Metropolitan Transportation Agency 8 / Requiring Mask Wearing When Using the Facilities and Conveyances of the MTA and its Operating Affiliates and Subsidiaries (E) Public Service Commission 10 / Proposed Revisions to the Companies Firm Demand Response Programs for the 2021 - 2022 Winter Season (P) 10 / Exemptions from Utility Standby Rates for Efficient Combined Heat and Power Projects (P) 11 / Use of Pipeline Refund (P) 11 / Transfer of Street Lighting Facilities (P) 12 / Proposed Agreement for Provision of Service by Saratoga Water Services, Inc. (P) 12 / Proposed Pilot Program to Use AMI to Disconnect Electric Service to Customers During Gas System Emergencies (P) State, Department of 13 / Renewal Processing Post COVID-19 Emergency Orders (E) Workers' Compensation Board 13 / Designated Contact Information (A) 14 / Notice as Required for Compliance with the Formulary (A)

Hearings Scheduled for Proposed Rule Makings / 15 Action Pending Index / 17

Advertisements for Bidders/Contractors 67 / Sealed Bids

Notice of Availability of State and Federal Funds 69 / Housing and Community Renewal, Division of

Miscellaneous Notices/Hearings 71 / Notice of Abandoned Property Received by the State Comptroller 71 / Public Notice

RULE MAKING

ACTIVITIES

Each rule making is identified by an I.D. No., which consists of 13 characters. For example, the I.D. No. AAM-01-9600001-E indicates the following:

AAM 01 96 00001

E

-the abbreviation to identify the adopting agency -the State Register issue number -the year -the Department of State number, assigned upon receipt of notice. -Emergency Rule Making--permanent action not intended (This character could also be: A for Adoption; P for Proposed Rule Making; RP for Revised Rule Making; EP for a combined Emergency and Proposed Rule Making; EA for an Emergency Rule Making that is permanent

and does not expire 90 days after filing.)

Italics contained in text denote new material. Brackets indicate material to be deleted.

Department of Environmental Conservation

NOTICE OF ADOPTION

Chlorpyrifos Prohibition

I.D. No. ENV-04-21-00007-A Filing No. 801 Filing Date: 2021-07-02 Effective Date: 2021-07-31

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Amendment of Part 326 of Title 6 NYCRR. Statutory authority: Environmental Conservation Law, sections 1-0101, 3-0301 and 33-0303 Subject: Chlorpyrifos prohibition. Purpose: Prohibit distribution, sale, purchase, possession, or use of pesticides that contain the active ingredient chlorpyrifos. Text or summary was published in the January 27, 2021 issue of the Register, I.D. No. ENV-04-21-00007-P. Final rule as compared with last published rule: No changes. Text of rule and any required statements and analyses may be obtained from: Scott Menrath, P.E., NYS Department of Environmental Conservation, 625 Broadway Albany, NY 12233-7254, (518) 402-8788, email: scott.menrath@dec. Initial Review of Rule As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment In January 2021, the New York State Department of Environmental

Conservation (Department) proposed regulations to prohibit all sale, distribution, possession, or use of pesticides with the active ingredient chlorpyrifos. Notice of the proposed rulemaking appeared in the January 27, 2021 State Register as well as in the DEC's Environmental Notice Bulletin. Public comments were received from January 27, 2021 through April 5, 2021. A virtual public hearing was held on March 30, 2021.

The majority of commentors supported this proposed regulation to protect public health, particularly farmworkers, farm families, children, and others living near agricultural areas. Several commentors referred to various studies suggesting that chlorpyrifos exposure may be linked to cancer, Parkinson's disease, reduced IQ, memory loss, attention deficit disorder, developmental delays, other neurological health effects, and low birth rates.

Other commentors supported this proposed regulation to protect mammals, fish, amphibians, aquatic and terrestrial invertebrates, reptiles, birds, pollinators, and plants.

Several people commented that the Department should delay the effective date of the chlorpyrifos product registration cancellations. In addition, they requested that the Department use the authority provided in Environmental Conservation Law Section 33-0715 to appoint an Advisory Committee consisting of representatives from the health, science, and agriculture disciplines. Based upon the committee's recommendations, the Department should revise the final regulation and the registration cancellations.

The chlorpyrifos product registration cancellations are separate actions and are not considered part of this rulemaking and the provisions of Environmental Conservation Law Section 33-0715 relate to pesticide product registration matters, including the suspension and cancellation of pesticide product registrations. The proposed rulemaking is not an action associated with a pesticide registration, cancellation, or suspension of a specific pesticide product; it is a prohibition of an active ingredient. Therefore, these requests are not applicable to this rulemaking.

Several commentors objected to the chlorpyrifos pesticide product registration cancellations and the proposed rulemaking based upon the need for chlorpyrifos to be used as a means of pest resistance management associated with an Integrated Pest Management (IPM) program.

Although the chlorpyrifos pesticide product registration cancellation process is beyond the scope of this proposed rulemaking, the Department did identify concerns about pest resistance and IPM that are addressed in the response to comments. The Department considered IPM and resistance management during the development of this proposed rulemaking and recognized that efforts are needed, and some are already underway, to develop alternatives and IPM techniques to address the loss of chlorpyrifos. The Department also consulted with Cornell University College of Agriculture and Life Sciences to discuss potential pest resistance and IPM impacts to agriculture and industry. Although there are significant pests that chlorpyrifos products are used to control in certain crops, and there are some short-term impacts to growers, there are some effective, albeit more costly, alternatives that can help to mitigate development of significant pest resistance. It was determined that research and development of alternative products and practices should reduce long-term agricultural impacts associated with pest resistance and IPM.

Several commentors were concerned about the disposal or use of existing stocks and inventory of chlorpyrifos pesticide products to ensure that they can comply with the proposed regulation.

Following the effective date of the proposed regulation, the application of chlorpyrifos pesticide products will not be permitted. However, the May 3, 2021 enforcement discretion will allow the possession, transport, storage, or handling of open or closed containers of chlorpyrifos pesticide products that were already in the possession of distributors and users prior to the effective date of their registration cancellation. This discretion only allows this use for the purposes of shipment out of state or for proper disposal until February 1, 2022. In addition, as resources allow and based

1

Rule Making Activities

upon demand, the Department will plan CleanSweepNY events to accommodate the disposal needs for chlorpyrifos pesticide products.

Several comments were made that the proposed rulemaking will create a direct economic hardship for agricultural producers and turf managers since many alternative products are more expensive and require multiple applications. The expense and the need to conduct multiple applications makes these alternative products less desirable options to control pests on certain fruit and vegetable crops and turf.

The Department recognized that there could be potential economic impacts to agricultural producers associated with this regulation as described in the Regulatory Impact Statement. This regulation was developed to protect environmental resources and people. Various factors were weighed during this decision-making process including the need for the continued use of this pesticide, the Environmental Protection Agency (EPA) draft risk assessments, and other information. The information reviewed indicates that there are risks to pollinators and other environmental resources, that occupational handler risks are still a concern, and that the neurodevelopmental effects from chlorpyrifos remain uncertain. The Department also reviewed the pesticide annual reports for the sales and use of chlorpyrifos in New York since 2013. This evaluation of the sale and use reports indicates that there is relatively little use of this pesticide in the state. Based upon the information reviewed and the uncertainties associated with many aspects of chlorpyrifos use, the Department concluded that the prohibition of chlorpyrifos will help protect workers, environmental resources, pollinators, and children even though it may have economic impacts on agricultural producers. The Department believes that economic impacts should be limited.

Several commentors indicated that the alternatives to chlorpyrifos may also pose health and ecological impacts associated with their use.

There are several pesticides that potentially can be used as alternatives to chlorpyrifos. These alternative active ingredients should be used and evaluated on a case by case basis and the least toxic material should be chosen by the user when needed. All pesticides have precautions associated with their use, which may be identified during the Department's registration process. However, the use of chlorpyrifos has been brought under additional scrutiny by the Department due to the risk, exposure, other information reviewed, the Governor's directive, and the Legislature's intent to prohibit its use and eliminate potential exposure to the public and environmental resources.

Several commentors remarked that political processes, including Governor Cuomo's veto and directive associated with the chlorpyrifos bill, passed by both houses of the legislature, circumvented the Department's science-based pesticide registration process.

In response to the Governor's directive, the Department reviewed the most recent available data from EPA, including EPA's September 15, 2020 draft ecological risk assessment for registration review of chlorpyrifos and the September 21, 2020 draft human health risk assessment for registration review of chlorpyrifos. Independent of the Governor's directive the Department's proposed rulemaking was supported by the information reviewed and the uncertainties about chlorpyrifos use specified in these documents; consequently, the Department initiated the rulemaking process to prohibit the use of chlorpyrifos.

Several commentors expressed concerns that there are not suitable alternatives to replace chlorpyrifos pesticide products for pests including the cabbage maggot, onion maggot, and bluegrass weevil. Some of these commentors have requested that either existing stocks of these materials be permitted until a viable alternative is found or limited use of this material be permitted for the control of certain pests.

The Department has determined that the need to protect workers, environmental resources, pollinators, and children is essential and a complete prohibition of the use of chlorpyrifos products will help accomplish this protection The variables associated with pest control and the methods available to register and regulate pesticides make it difficult to limit pesticides to certain uses; therefore, a complete prohibition is the only viable mechanism to achieve the Department's and Governor's goal of protection of public health and the environment from chlorpyrifos. Research into alternative products will need to continue with New York State research and academic institutions and others to find solutions to control these pests.

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NYS Register/July 21, 2021

Department of Financial Services

EMERGENCY

RULE MAKING

Rules Governing the Procedures for Adjudicatory Proceedings Before the Department of Financial Services

I.D. No. DFS-29-21-00001-E

Filing No. 798

Filing Date: 2021-06-30

Effective Date: 2021-06-30

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken: Amendment of Part 2 of Title 23 NYCRR.

Statutory authority: Financial Services Law, sections 102, 201, 202, 302, 305; State Administrative Procedure Act, section 301

Finding of necessity for emergency rule: Preservation of public health and general welfare.

Specific reasons underlying the finding of necessity: Since March 7, 2020, when Governor Andrew M. Cuomo issued Executive Order Number 202 declaring a disaster emergency in the State of New York in response to the novel coronavirus ("COVID-19") pandemic, COVID-19 has spread to millions of people worldwide, with more than 2,000,000 confirmed cases in New York State. There are still cases of New Yorkers testing positive for the virus and a new variant strain of the virus, the Delta variant, which has been classified as a variant of concern by the Centers for Disease Control and Prevention, is spreading in the United States. The Delta variant is a more transmissible and contagious form of COVID-19 and it may cause more severe symptoms and outcomes. Given the public health implications related to COVID-19, it is essential that the Department of Financial Services ("Department") promulgate regulations that implement protective measures, whenever possible, to help stop its spread.

This amendment adds a new section 2.19 to 23 NYCRR Part 2, specifying that the Department may conduct administrative hearings by videoconference at the Department's discretion. This is being done so that the parties and hearing officers do not have to be physically present at the same location during hearings. A hearing officer will determine, upon a timely objection filed by the respondent or applicant that a hearing held by videoconference would either impinge upon the respondent's or applicant's due process rights, or would be fundamentally unfair or impractical, as expressed in section 2.19(d) of the regulation, if a hearing will be held via videoconference.

The Department is taking special precautions during this unprecedented health crisis to minimize the spread of COVID-19 by, among other things, reducing the number of individuals who may enter the Department's offices at any given time. Therefore, conducting an administrative hearing by videoconference protects the safety of those participating in, or witnessing the hearing, by avoiding personal contact in a way that will help limit the spread of COVID-19. It is thus imperative that this amendment be promulgated on an emergency basis for the public's general welfare and the preservation of public health.

Subject: Rules Governing the Procedures for Adjudicatory Proceedings Before the Department of Financial Services.

Purpose: To specify that the Department of Financial Services may conduct administrative hearings by videoconference.

Text of emergency rule: Section 2.19 is added to read as follows: ? 2.19 Hearings conducted by videoconference. (a) At the discretion of the Department official who issued the notice of

action or proposed action, a hearing held pursuant to this Part may be conducted by videoconference. When a hearing is conducted by videoconference, none of the parties nor the hearing officer need to be physically present at the same location.

(b) All provisions of this Part that are not inconsistent with the specific provisions of this section shall apply to hearings conducted by videoconference. For purposes of ? 2.14(b) of this Part, the term hearing room shall mean videoconference when a hearing is conducted by videoconference.

(c) A respondent or applicant may object to conducting the hearing by videoconference by sending a written notice of the objection to the hearing officer by first class mail, overnight mail or electronic mail to an address or email address designated by the Department and posted on the

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